Redwood Landfill owner appeals Marin judge's decision

The owner of the Redwood Landfill in Novato is appealing a Marin Superior Court ruling that could force the landfill to close within the next 10 years.

"We didn't feel that we got a fair shake at the trial court so we're headed toward the Court of Appeal," said Osha Meserve, an attorney representing the landfill's owners, Houston-based Waste Management Inc.

Last week, Marin Superior Court Judge Lynn Duryee finalized her ruling invalidating an environmental impact report that had paved the way for the landfill to remain open for nearly 25 years. Duryee's ruling has had no immediate effect on the landfill's day-to-day operation; but if judgment stands it could accelerate the timetable for closing the dump.

After the county of Marin certified an environmental impact report in 2008, the landfill was able to obtain a permit from the state to boost capacity at the landfill by 6 million cubic yards, to a total capacity of 25 million cubic yards.

No Wetlands Landfill Expansion and several other environmental groups have warned that Marin taxpayers could get stuck with the bill if toxic leachate stored in the landfill escapes due to flooding or an earthquake. The landfill is surrounded on three sides by the Petaluma River, San Antonio Creek and other wetlands that lead into San Francisco Bay.

Bruce Baum, chairman of No Wetlands Landfill Expansion's board of directors, said his organization was notified of the appeal on Christmas Eve.

"It was our Christmas present," Baum said. "I think we have a very strong case. The Marin County court was very clear in giving the county some direction. I think we will prevail in appellate court."

Meserve said the case will go to the 1st District Court of Appeal in San Francisco, and she estimated it could take up to a year for the justices to hear the case. Meserve said that is how long it took the district court to rule on the appeal of a previous ruling related to the landfill's environmental impact report.

In March, the 1st District Court of Appeal ruled in favor of the landfill, overruling a decision by Marin Superior Court Judge James Ritchie that the county violated the California Environmental Quality Act when it denied a request for the Marin Board of Supervisors to rule on an appeal of the environmental impact report approval.

"We asked the 1st District Court of Appeal to rule on all issues in addition to that procedural issue and they refused unfortunately," Meserve said. "That's how we ended up back in the trial court."

Nancy Grisham, a deputy county counsel, helped the landfill's attorneys argue their case before Judge Duryee. Meserve said the landfill would welcome the county's participation in this new appeal, but she said the county has not yet decided if it will get involved.

In her ruling, Duryee wrote, "By not including a discussion of the cumulative effect of the project's greenhouse gas emissions, (Marin County) Environmental Health Services failed to proceed in a manner required by law." Duryee also identified several other aspects of the report that she said were deficient.

She said the report failed to adequately discuss the possible increased "noncancer health impacts" from air pollutant emissions. She said the report improperly deferred formulation "of mitigation measures to reduce the impact to the project from potential flooding," and "mitigation of the impact from groundwater contamination from an improperly designed leachate collection and removal system." And, Duryee ruled that the environmental impact report failed to adequately describe an off-site alternative to the project.

Meserve, however, said that when the facts in a full, environmental impact report are challenged in court the burden of proof resides with the party making the challenge. She expects that to be a key issue in the appeal.